Understanding Bargaining in Divorce Mediation

By Gerald A. Maggio, Esq.

Divorce mediation attorneys Orange County; California Divorce MediatorsThere are two ways to resolve a divorce case:  One is litigation, while the other is mediation. The primary difference between the two is that one is decided by the judge, while the other is decided by the spouses themselves.  Divorce mediation in Orange County and California in general is starting to take root among the general public today primarily because it involves granting the decision making power to the spouses themselves.

In mediation, there are three parties involved in the discussions. One if the mediator and the other two are the spouses themselves. The job of the mediator is to simply preside over the matter and make sure that the discussion goes in a healthy, amicable and peaceful environment.


The essence of divorce mediation is to make sure that spouses are able to reach a mutually conclusive agreement between the two that both parties agree on. While you and your spouse may have lived together, once you decide to part ways the design of each spouse on their respective futures can be different. Most of these plans will need to be agreed upon in mediation in terms of child custody, division of asset, child and spousal support payments etc.

These are all matters that can lead to a deadlock, in such a situation you need to be able to master the art of bargaining. Bargaining means taking something by giving the other party something else that he or she wants. The most important distinction you need to make when you are negotiating with your spouse is whether it’s strictly business or whether the two parties still have some feelings of appreciation for one another.

Bargaining for Your Benefit

When you are bargaining the most important thing to do is to establish your initial position. You need to make sure whatever initial offer you make has room for you to concede through the process of bargaining. The initial offer that you make is often assumed to be the least that you will accept at the start of discussion.

Ideally, the key to bargaining is going into divorce mediation knowing exactly what is a must for you to have and then making sure you use the other resources and offers trying to accept that is achieved.

What you Should and Should Not Do in Bargaining

  • You need to be willing to compromise and be flexible.
  • Whatever offer you make, make sure they are reasonable and you explain the reasoning to your spouse.
  • Always stay calm, things may get heated, but a level head will make sure you get your targets
  • You should make it clear that you are not hesitant to walk away from the bargaining if it gets one sided.
  • Don’t intimidate the other spouse and don’t be intimidated by them either.

To learn more about the divorce process in California and how mediation can help, please visit our page, “What is Divorce Mediation.”